Spotlight on the Mental Health Bill: community provisions

Our series covers:

• Assessment and admission
• Nominated Person
• Inpatient issues Part I - treatment
• Inpatient issues Part II - RCs, IMHAs, complaints, discharge
• Community issues Part I - CTOs
• Community issues Part II - conditional discharge, guardianship and aftercare

In this final briefing of our series, having already considered proposed changes to CTOs, we will consider the remaining changes the Bill is proposing in relation to community provisions.

Conditional discharge - summary of key changes

Following the MM judgment ([2018] UKSC 60), it has not been possible to conditionally discharge patients with the requisite capacity with conditions that amount to (or have the ‘concrete effect’ of creating) a deprivation of liberty.

This means that those patients who could only be safely managed in the community, which would be less restrictive for them than remaining in hospital, where they can be supervised to an extent which would create a deprivation of liberty, cannot be lawfully conditionally discharged.

For those already subject to a conditional discharge with conditions that amount to a deprivation of liberty and so, following MM, were unlawful, this created a significant problem, particularly where some patients had been living in the community for decades without issue.

For those patients lacking the requisite capacity, who need to be deprived of their liberty in the community, the 'fix' of ensuring that any necessary deprivation of liberty is not part of the Tribunal's conditions, but is authorised under the MCA (through DoLS or a Court of Protection order) has developed.

However, this is not, of course, an option for those patients who have the requisite capacity. As a result, an alternative 'fix' was developed utilising s.17 long term leave in place of the conditional discharge, in accordance with guidance set out by the Home Office issued in January 2019 and which was considered by the Court in CNTW NHS Foundation Trust and Secretary of State for Justice v EG ([2021] EWHC 2990).

The effect of this, is that the patient remains on a s.37/41, but is given extended s.17 leave, with a condition of custody, to authorise the deprivation in the community. For those patients already in the community a 'technical recall' was issued, so that the patient is legally recalled (and becomes a s.37/41 again) but for practical purposes remains in the community with the same care plan.

Whilst this creates an immediate 'fix' it is unsatisfactory for a number of reasons and potentially problematic for any patients where there is disagreement over capacity or where capacity may fluctuate.

The Bill provides a ‘fix’ for this situation, including a new provision for certain patients to be conditionally discharged with conditions that amount to a deprivation of liberty. We outline the key changes, and our thoughts on their potential impact, in more detail below.

Criteria

What changes is the Bill proposing?

The Bill amends the current MHA so that either the Secretary of State (SoS) or the Tribunal can effect a conditional discharge with a deprivation of liberty.

The SoS can conditionally discharge a patient with conditions amounting to a deprivation of liberty, where the SoS is satisfied that 'such conditions are necessary for the protection of the public from serious harm'.

The Tribunal can make such an order where the Tribunal is satisfied:

• 'That conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital, and
• That for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital.'

In any event, the patient will be entitled to Tribunal applications and referrals.

The provisions will also be retrospective, applying to those who have already been detained/conditionally discharged when the provisions come into force.

Our thoughts

Presumably then, the use of technical recall and long term s.17 leave will become a thing of the past, with relevant patients now being conditionally discharged with conditions of deprivation of liberty instead.

However, where the patient needs to be deprived of their liberty in their best interests, rather than for the protection of others, the new provisions will not apply. Where such a patient lacks capacity, they will presumably, as now, be conditionally discharged without any conditions amounting to a deprivation attached, but with any necessary deprivation separately authorised under the MCA (DoLS/CoP order).

Guardianship - summary of key changes

The use of guardianship has diminished over time, to the point where many Local Authorities now have no, or very few, service users subject to guardianship. This is not surprising since it is difficult, at times, to see what part the role of guardianship now has to play, particularly where, in many cases, the MCA provides the necessary legal framework.

The Bill does provide some limited changes and, whereas currently guardianship is 'lined up' to a large degree with s.3 (for example in terms of application process and time limits), the changes proposed by the Bill to s.3 will not be applied to Guardianship.

What changes is the Bill proposing?

• Whilst autism and learning disabilities are removed from the s.3 definition (and so from Part 2 CTOs), they remain for guardianship purposes, so that a guardianship application can be made where the person has a psychiatric disorder and/or autism and/or a learning disability with serious behavioural consequences.

• The nominated person (NP) can object to guardianship, as the nearest relative (NR) currently can, however, somewhat surprisingly, the NP objection can be overridden by the AMHP on 'dangerousness grounds' (which in practice may well be very difficult to meet).

• The NP will still be able to discharge from Guardianship, however, and (as now) there will be no process for overriding that request, although the NP will have to consult the Local Authority before doing so.

• Discharge from guardianship otherwise, will also require consultation first.

• The ‘burden of proof’ for Tribunals is reversed, so that the Local Authority has to demonstrate that the guardianship criteria are met.

• Unlike s.3, the time periods for Guardianship remain the same (6 months, 6 months, yearly).

Our thoughts

In light of the fact it is so rarely used in any event, the impact in practical terms will be very limited.

Aftercare s.117 - summary of key changes

Section 117 MHA provides for certain detained patients to be entitled to aftercare (free of charge) on discharge from hospital. The responsibility to provide aftercare sits jointly with the relevant Local Authority and ICB, which are identified under s.117 (in part) based on where the patient was ordinarily resident immediately before detention. There is no power to compel someone to receive s.117 services, however, it often plays a key role in discharge planning.

Over recent years there has been a considerable amount of dispute over identifying the responsible s.117 bodies and the potential for this to delay discharge, with changes introduced in relation to which ICB has responsibility, and the Supreme Court asked to determine how to establish LA responsibility in the case of R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care ([2023] UKSC 31).

The Bill introduces changes to 'tidy up' elements of s.117, including the identification of the relevant Local Authority and the broadening of the Tribunal's powers.

What changes is the Bill proposing?

• ‘Deeming provisions’ in relation to Ordinary Residence will apply, including those in the Care Act (s.29(1)-(3)) for adults placed in certain accommodation by a Local Authority and for under 18s in certain accommodation (s.105(6) of the Children Act 1989).

• The Tribunal will be given the power to make recommendations in relation to s.117 bodies that they make plans for the provision of aftercare, with a view to facilitating discharge on a future date and to reconvene if these are not complied with.

• The responsibility to provide aftercare can only be ended by service of a joint notice in writing from the responsible s.117 bodies.

Our thoughts

Issues with identifying the relevant s.117 bodies and delays with putting aftercare packages in place frequently arise, so the additional powers of the Tribunal are welcome. It remains to be seen, however, how effective the power to recommend is in practice and it does not resolve the issue where there is a dispute as to which bodies are actually responsible.

The application of the deeming provisions will achieve what the lengthy court proceedings in the Worcestershire case referred to above did not, with Local Authorities no longer being able to absolve themselves of s.117 responsibilities by placing a person in another local authority area from where they get re-detained, triggering a fresh s.117 entitlement. This will also line up more neatly with the NHS provisions for identifying the responsible ICB.

A clear notice requirement to end s.117 will hopefully assist in eliminating the confusion that all too often arises (or historically has arisen) in relation to ending of the s.117 responsibility.

What next?

Whilst, of course, changes may still be made (and there is some tidying up to do) as the Bill proceeds through the parliamentary process, it seems likely that there will not be any major changes.

Although implementation (which will be phased in) is not likely to commence until 2027 - with the Code, new regulations and forms to be drafted in 2026 - there will be lots of work to do preparing for these changes and services should begin their strategic planning now.

We will continue to keep you updated on developments and, as the Bill moves towards implementation, can assist by advising on drafting and implementing policies and processes that are compliant with legislative change and will withstand regulatory scrutiny. We can also provide training on all aspects of the Mental Health Act and the impact of the proposed changes to ensure that staff understand the scale and implications of what is being proposed.